The Bush administration's controversial fence along the Southwest border escaped a potentially devastating legal roadblock Monday as the Supreme Court rejected a constitutional challenge by environmental groups and more than a dozen members of Congress.
Without comment, the justices refused to consider pleas that Homeland Security Secretary Michael Chertoff had overstepped his constitutional authority by waiving laws and regulations in order to expedite construction of 670 miles of fencing along the U.S.-Mexico border.
Chertoff, invoking authority granted by the REAL ID Act of 2005, has waived more than 30 laws in the administration's goal to complete the fencing by Dec. 31. Chertoff has told Congress that “it would be impossible” to meet the deadline without invoking the waivers.
The case in question before the high court focused on a 2-mile section of fencing in the San Pedro Riparian National Conservation Area near Naco, Ariz. A broader challenge to Chertoff's waiver authority has been filed in a federal court in El Paso, Texas, but fence opponents acknowledged that the Supreme Court decision was a stunning setback in their efforts to block construction.
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“It does send a surprising and disturbing message that the broadest waiver in American history, unprecedented in its scope, is not worthy of the court's consideration,” said Brian Segee, staff attorney for the Defenders of Wildlife. “The only thing that can stop the construction of this very destructive border wall is Congress.”
Laura Keehner, the press secretary for the Department of Homeland Security, said the administration “is obviously pleased” with the court's refusal to consider the case.
“The American people expect this department to enforce the rule of law at the border,” she said. “Our efforts to do so sometimes result in lawsuits like this one, which the court rejected.”
If the court had agreed to review the challenge, it wouldn't have heard arguments until its next term, which begins in October. Although the fence faces other lawsuits and objections from property owners in Texas, DHS officials have said repeatedly that they're on track to complete the fence before the Bush administration comes to an end in mid-January.
The Defenders of Wildlife and The Sierra Club filed their petition March 17, contending that the waivers granted under REAL ID give “unbounded authority” to the executive branch and violate the Constitution's separation of powers provision.